October 15, 2021

Federal Contractors and Subcontractors Must Show Proof of Vaccination by Dec. 8

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On Sept. 24, the Biden administration issued its latest vaccine guidance that covers federal contractors and subcontractors.

Pursuant to the guidance, Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
  2. Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces; and
  3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The guidance applies to contractor or subcontractor workplace locations that are indoors and outdoors. The guidance also sets out a process for the Federal Acquisition Regulatory Council ("FAR" or "FAR Council") to implement such protocols and guidance for covered Federal procurement solicitations and contracts subject to the FAR, and for agencies that are responsible for covered contracts and contract-like instruments not subject to the FAR.

Who is covered?

A covered contractor means a prime contractor or subcontractor at any tier who is party to a government contract. Covered contractors are responsible for ensuring that covered contractor employees comply with the protocols.

When is implementation required?

Covered contractor employees must be fully vaccinated no later than Dec. 8.

Are there exceptions?

Yes. A covered contractor may be required to provide an accommodation for employees who are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should carefully review and consider what, if any, accommodation it must offer. Requests for "medical accommodation" or "medical exceptions" should be treated as requests for a disability accommodation.

Are there masking and physical distance requirements?

Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. A covered contractor may be required to provide an accommodation for employees who cannot wear a mask for disability or religious purposes, similar to an accommodation made for an employee who is unvaccinated for similar purposes.

Covered contractors may also provide for exceptions to mask wearing and/or physical distancing requirements under circumstances where individuals are alone in an office space or when eating or drinking at an appropriate distance. Exceptions may also be provided for covered contractor employees engaged in work activities in which, for example, a mask may get wet or wearing it may cause difficulty breathing or create a risk to workplace health, safety, or job duty. Such exceptions must be approved in writing by an authorized representative of the covered contractor.

Who should coordinate the safety protocols in the workplace?

Covered contractors shall designate a person or persons to coordinate implementation of and compliance with the guidance and the workplace safety protocols detailed within it at covered contractor workplaces. The designated person or persons must ensure that information regarding the protocols as outlined in the guidance are communicated to covered contractor employees and all other individuals likely to be present at covered contractor workplaces, including visitors.

How do the protocols and guidance affect covered contractor employees working remotely?

A covered contractor employee's residence is not a covered contractor workplace, so while working remotely in the residence, the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract. However, such an individual must nonetheless comply with the vaccination requirement for covered contractor employees, even if the employee never works at the covered contractor's workplace during the duration of the contract.

For additional information regarding this new guidance, please contact Maria Fracassa Dwyer at [email protected] or your Clark Hill, PLC attorney.

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